Mitigation: what not to say and other court problems

A typical Magistrates' Court - no defence brief in sight due to legal aid cuts

Not long ago, I wrote about mitigation given in the case
of a celebrity who had been convicted of drink driving.I return to the topic today after seeing what
should have been a car crash of a plea in mitigation, but was saved by the “inexperience
of the bench” – those were the words of another advocate who witnessed the
hearing.

I want to say at this point that I don’t write these
posts in the hope of shaming another advocate or because I want to show off. I
write them because I think it is important for all of us who appear before the
courts to be reminded once in a while that everything we say (and the things we
choose not to say) are important and proper consideration should be given to
everything. That often does not happen when people view offences as “not
serious” or “unimportant”, but while a drink driving or TWOC may be minor in the
grand scheme of things it will be important to the client, which means that it
should be important to the advocate as well.

The case: an aggravated TWOC (taking a vehicle without
the owner’s consent – basically pinching a vehicle – and causing damage to it)
in which the defendant pleaded guilty to driving a motorbike without the
consent of the owner and causing several thousand pounds’ worth of damage when
he crashed it.The Crown’s case was that
the defendant had been with friends, including a passenger on the motorbike,
all of whom ran off when the police arrived.No key was found either on the defendant or with the motorbike and the
ignition was found to have been hotwired.

The mitigation: the defence took the court through the
injuries that the defendant caused himself during the crash from the stolen
motorbike.To my mind this is never the
strongest mitigation because he brought the injuries upon himself, but that
said it is good stuff in that it shows a defendant has already suffered as a
result of his actions and may have learnt from the error of his ways.

Next the court was treated to some confusing points that
really should have caused judicial eye brows to be raised, but were allowed to
pass without comment.First, the defence
advocate (I believe him (or her) to be a local solicitor) told the court that
the defendant denied taking the motorbike and had purchased it the day
before.This is a difficult point for
two reasons:

1.He
has pleaded guilty to the Crown’s case on the full facts, i.e. that he had no
key with him, there was no key with the motorbike and it had been hotwired –
that is not consistent with being a legitimate purchaser.

2.If
the defendant is claiming to be the owner of the motorbike then it is difficult
to understand how he can be accepting that he took it without the owner’s
consent and so he cannot be accepting his guilt.Thus, it is an equivocal plea and the court
should refuse to accept it.

The fact that neither the defence advocate, nor the
prosecutor, nor the court’s legal advisor nor the magistrates picked up on this
equivocal plea tells us that far too many people in the court room either aren’t
paying attention, don’t know the rules or simply don’t care whether they are
administering justice rather than simply going through the motions.

The advocate had asked the court to give full credit for
the guilty plea, which is fair enough.But, he went on to tell the court (needlessly and potentially in breach
of his duty of confidentiality to the defendant and in breach of the defendant’s
legal privilege in the information) that he had advised a guilty plea because
the evidence was overwhelming and the defendant had no prospect of successfully
defending himself at trial.This is
definitely not something you should be saying in mitigation because the court
is entitled to reduce the amount of credit given to an offender.The Definitive Guideline has this to say:

“Where the prosecution case is overwhelming, it may not be
appropriate to give the full reduction that would otherwise be given.
Whilst there is a presumption in favour of the full reduction being given where
a plea has been indicated at the first reasonable opportunity, the fact that
the prosecution case is overwhelming without relying on admissions from the
defendant may be a reason justifying departure from the guideline.

“Where a court is satisfied that a lower reduction should be given for
this reason, a recommended reduction of 20 per cent is likely to be appropriate
where the guilty plea was indicated at the first reasonable opportunity.”

(emphasis added)

So, when the defence is submitting that they had no
choice but to plead guilty because of the overwhelming nature of the
prosecution case what they are really asking is for the court to reduce the
sentence discount from 33% to 20%.This
could be the difference between a few pounds in a fine or a few months’
imprisonment – either way it is not something that a defence advocate should be
saying.

Had this advocate found himself before a more confident,
more experienced, or even a more thoughtful bench then he may well have found
himself in a lot of difficulties. As it was, he got lucky. But that luck won’t
hold in every hearing.

In my view, this is part and parcel of a decline in
standards that has taken place over the past few years since the introduction of
Criminal Justice: Simple, Speedy, Summary (CJSSS). The CJSSS system has shifted
the emphasis of the Criminal Justice System away from the “Justice” element and
firmly onto the “Speedy” element. Up and down the country, you’ll hear the cry
from magistrates reminding advocates that “justice should be speedy”. If you
every fancy a laugh, trying responding with, “justice should also be fair and
just” then sit back watch the judicial confusion at this new and never before
considered concept.

Another problem that is causing the erosion of our
justice system is the cut in funding on all sides. Neither prosecutors nor
defence advocates have the time to conduct proper research and, if my
experience is anything to go by, hardly any legal aid defence firms have access
to proper legal research tools because they are too expensive (I pay about
£2,000 per year for various subscriptions, imagine the cost if you employed 10
advocates and are only just breaking even). This lack of time and resources
leads to the scenes I saw at a recent appeal to the Crown Court. A defendant
was appealing his sentence; the facts aren’t important. He won his appeal. The
prosecution then sought costs of £340 from him, the defence barrister asked for
a lower sum to reflect his clients limited means and the court considered how
much to award. I was confused for a moment and then it dawned on me – I was the
only person in the room who had bothered to read the criminal costs Practice
Direction, which clearly states, “The
Crown Court may make an order against an unsuccessful appellant… ” Note the
word “unsuccessful” in there – it’s a pretty basic tenet of costs law in
England that “costs follow the event” and criminal law pretty much follows this
rule so the losing party pays the costs in most cases.

I also won my appeal and my application for costs was met
by a very surprised “did you win? We only reduced it a bit.” The
disqualification had gone from 20 months to 14 months, which strikes me as a
fairly decisive win when that’s precisely what we asked for! Fortunately, apathy
saved me having to quote rules and the judge sighed and said that he supposed
he could allow costs, as long as they come from central funds and not the Crown
Prosecution Service.

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I am a solicitor-advocate who specialises in motoring law with a particular interest in representing clients who have been charged with criminal driving offences involving alcohol, such as drink driving and failing to provide a specimen of breath.